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TMI Blog2019 (10) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... ew, it is not permissible for the Assessing Officer for exercising powers u/s. 148 to reopen the assessment u/s. 147. Even in the original assessment, AO has also mentioned that the purchase vouchers were from unregistered concerns and self made and further mentioned that the payments for purchase of material and labour wages were made in cash. Once, the same material was available, then it was not open for the Assessing Officer to reopen the assessment. Case followed M/S. KELVINATOR OF INDIA LIMITED [ 2010 (1) TMI 11 - SUPREME COURT] - Decided in favour of assessee. - ITA No. 283/Agr./2017 (Assessment Year: 2008-09) - - - Dated:- 11-9-2019 - Shri Laliet Kumar, Judicial Member And Dr. Mitha Lal Meena, Accountant Member Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. That in the case of estimate of income provision of sec. 40A(3) had no application and the addition of ₹ 1821313 sustained u/s 40A(3) is illegal. 7. That the expenditure in cash on purchase of gitti, sand etc. was incurred at the spot where banking facilities were not available and payment was made under compelling circumstances and inexpediency of business and addition sustained at ₹ 1821313/- is illegal and arbitrary. 2. The ld. AR had submitted that in the present case, the assessment u/s. 143(3) was completed by the Assessing Officer on 01.12.2010, assessing the income of the assessee at ₹ 5,39,690/-. However, subsequently, the Assessing Officer had reopened the assessment for the following reasons : ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mitted that there was no fresh material available with the Assessing Officer which could have triggered the reassessment proceedings by issuing notice u/s. 148. It was submitted that the Assessing Officer in the reassessment proceedings, has not been able to establish or bring on record any evidence substantiating the failure on the part of the assessee in disclosing fully and truly all material facts necessary for assessment. It was submitted that the Assessing Officer in paragraph No. 3 of the original assessment order had given the comparative net profit and NP rate for the assessment year 2006-07, 2007-08 and 2008-09. On the basis of this comparison, it is clear that the NP rate of the assessee was progressive and it was noted to be 11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sions as mentioned in the paper book, more particularly, the decision in the matter of Larson Tubro Ltd. in Civil appeal No. 5390 of 2007. 5. We have heard the rival contentions of the parties and perused the record. The original assessment order was finalized on 01.12.2010 and in paragraph No. 3, it was noted by the Assessing Officer as under : A.Y Gross receipts (Rs) Net profit (Rs) N.P. rate N.P. @ 8% is 2006-07 52,88,022 5,88,746 08.00% 4,23,042 2007-08 37,81,491 4,10,549 10.86% 3,15,942 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ermissible for the Assessing Officer for exercising powers u/s. 148 to reopen the assessment u/s. 147 of the Act. Even in the original assessment, the Assessing Officer has also mentioned that the purchase vouchers were from unregistered concerns and self made and further mentioned that the payments for purchase of material and labour wages were made in cash. Once, the same material was available, then it was not open for the Assessing Officer to reopen the assessment. We may fruitfully rely upon the decision of Kelvinator of India (supra) relied upon by the assessee and respectfully following the decision of Hon ble Supreme Court and also other decisions in respect of reopening u/s. 147, the appeal of the assessee is allowed. 7. In th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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